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Alexis N. Dyschkant

Alexis Dyschkant represents policyholders in complex insurance coverage disputes and civil litigation in federal and state courts involving a wide variety of underlying claims and losses, including environmental liabilities, mass tort claims, cyber claims, government investigations, shareholder claims, errors or omissions liabilities, breach of privacy claims, first party property damage/business interruption, and event cancellation losses. Alexis is knowledgeable about domestic and foreign insurance policies including: commercial liability; malpractice liability; errors and omissions liability; directors and officers liability; cyber and privacy risk; owners', landlords', and tenants' liability; aviation policies; first party property policies; and event cancellation policies. She is an experienced coverage litigator with oral advocacy experience in high stakes matters. Alexis is a zealous and committed advocate for her clients and assesses the unique needs of each matter in order to develop a goal-oriented strategy.

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Although the Freedom of Information Act (FOIA) allows citizens to request agency records and thus keep a close eye on their government, proprietary information is exempt from disclosure under Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” A substantial body of case law has developed regarding what does and does not qualify as proprietary, and therefore exempt, under FOIA. For example, the total price paid under a government contract is rarely exempt, but a contractor’s line-item pricing often can be. However, there is no per se rule that line-item pricing is exempt from release under FOIA. Instead, contractors must show on a case-by-case basis that the disclosure of the line-item pricing would cause competitive harm.

On September 28, 2018, the D.C. District Court issued two noteworthy decisions holding that line-item pricing data and commission rates were exempt from release under FOIA Exemption 4. Northrop Grumman Systems Corp. v. NASA, No. 17-1902, 2018 WL 4681012 (D.D.C. Sept. 28, 2018); Hodes v. Treasury, No. 17-0219 (D.D.C. issued Sept. 28, 2018). Although these decisions do not break new ground, they are nonetheless significant as the latest examples of a court preventing the disclosure of pricing information. They suggest that courts are willing to apply a broad definition of confidential commercial or financial information where the contractor makes the necessary showing. They also reject common agency arguments for disclosing pricing information, such as the information is too old or not final. Thus, these opinions provide useful authority in defending against the public release of contractor pricing information.
Continue Reading New Cases Confirm that FOIA Exemption 4 Protects Line-Item Pricing Information

[This article was originally published in Law360 and has been modified for the blog.]

Over the summer, pursuant to Section 874 of the FY 2017 National Defense Authorization Act (“NDAA”)[1], the Department of Defense (“DoD”) issued a proposed rule[2] to exclude the application of certain laws and regulations to the acquisition of commercial items, including commercially available off-the-shelf (“COTS”) items.  Among other things, the proposed rule identifies certain DFARS and FAR clauses that should be excluded from commercial item contracts and subcontracts, and sets forth a narrower definition of “subcontract” that would carve out a category of lower-tier commercial item agreements from the reach of certain flow-down requirements.  A summary of the proposed rule and our key observations/takeaways are below.
Continue Reading Takeaways From DoD’s Proposed Changes to Commercial Item Contracting